In Beijing in the year 2000, leading national and international disability organizations met to discuss a new strategy ‘for the full participation and equality of people with disabilities’. They felt that existing international human rights instruments had ‘yet to create a significant impact on improving the lives of people with disabilities’. The Beijing Declaration sent out a call to action across the world to ‘strive for a legally binding international convention on the rights of all people with disabilities to full participation and equality in society.’ Following this, the Office of the High Commissioner for Human Rights initiated a comprehensive review of the treatment of disability in existing human rights instruments (conducted by Quinn and Degener, 2002). The UN then adopted a resolution proposed by Mexico to set up an ad hoc committee to consider the case for a disability Convention; its mandate was eventually extended to the drafting of a Convention. The negotiations of the CRPD benefited from very high levels of involvement of people with disabilities and their representative organizations; their contributions can be seen throughout the negotiations archive. Six years after the ad hoc committee was set up, the CRPD was signed.

Who has signed and ratified the CRPD?

The CRPD received the highest number of signatures in history for a UN Convention on its opening day (UN Enable). It is the first human rights Convention in history which has been open for signature by regional intergovernmental organizations; the European Union played an active role in the negotiations of the treaty and has signed and ratified it.

A full list of states who have signed and ratified the CRPD and OPCRPD is available online. At the time of writing, there were 158 signatories and 145 fully ratified parties to the CRPD, whilst the Optional Protocol has 92 signatories and 80 fully ratified parties. The UK has both signed and ratified the CRPD and OPCRPD.

States must submit a report within two years of ratifying the CRPD, and every four years thereafter, ‘on measures taken to give effect to its obligations under the present Convention and on the progress made in that regard’ (Article 35). The CRPD Committee then considers these reports and may request further information from the state (a ‘list of issues’), before offering its concluding observations. Civil society organizations can submit ‘shadow reports’ to the CRPD Committee, to help guide the Committee in the questions it poses to states.

Why is the CRPD sometimes described as a ‘paradigm shift’ in approach to disability?

The CRPD is often described as embodying a ‘paradigm shift’ in approach to disability. There are at least two important strands to this shift of approach.

Firstly, the CRPD is based on an approach to disability known as the ‘social model of disability’, which identifies disability as arising from the interaction of an individual’s ‘impairment’ with wider social and environmental barriers (see the definition of disability in Article 1 CRPD). As Thomas Hammarberg, the former Council of Europe Commissioner for Human Rights, puts it:

From viewing disability as a personal problem that needs to be cured (the medical model), we have come to see the source of the problem: the society’s attitude towards persons with disabilities. This means that we have to act collectively as a society in order to remove the barriers that hinder persons with disabilities from living among us and contributing to our society, and to fight against their isolation in institutions or in the back-rooms of family homes.

The CRPD also represents a shift from a welfare or charity based approach to disability to a rights and equality based approach. Hammarberg writes:

In short, persons with disabilities used to be considered as victims and objects of pity, charity, institutional care, medical rehabilitation or welfare benefits. This view has been replaced by one that regards them as active subjects with equal rights, capable of taking their own decisions and contributing to our societies.

What is ‘legal capacity’ and what does the CRPD say about it?

Legal capacity is hard to define precisely, but (roughly speaking) it means the ability to bear rights and duties under law and exercise legal agency. For example, entering into a contract is an exercise of legal capacity, and so is giving or refusing consent to medical treatment. Legal capacity is connected with lots of other rights contained within the CRPD, because it is intimately connected to a person’s right to make legally recognised decisions about their life. For example, it is connected with rights to give or refuse informed consent to medical treatment under the right to health, or to choose where and with whom one lives under the right to independent living. Legal capacity is also connected to access to justice, as both legal agency and effective access to justice are pre-requisites to vindicating one’s rights through litigation.

Legal capacity is different from ‘mental capacity’, which is an individual’s purported ability to make decisions. Currently, most national legal instruments say that people should only have legal capacity if they also have mental capacity. Article 12(2) CRPD says that ‘States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.’ The CRPD Committee has written a General Comment setting out its interpretation of Article 12. This General Comment is critical of approaches which say that people should only have legal capacity if they have mental capacity. The Committee says that ‘perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity’. The Committee says that these approaches are discriminatorily applied to people with disabilities, and it is sceptical about claims that ‘mental capacity’ is ‘an objective, scientific and naturally occurring phenomenon’. It emphasises that ‘Mental capacity is contingent on social and political contexts, as are the disciplines, professions and practices which play a dominant role in assessing mental capacity.’ However, no state has as yet taken the step to totally disconnect legal capacity and mental capacity.

Instead of limiting people’s legal capacity and imposing ‘substitute decisions’ on them in their best interests, the CRPD Committee say that people with disabilities should be offered the support they need in exercising their legal capacity. This is derived from Article 12(3) CRPD, which says that ‘States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity’. Article 12(4) says that measures relating to the exercise of legal capacity must have appropriate safeguards to ensure that they respect the rights, will and preferences of the person, and are free from undue influence and conflicts of interest. Several states do have systems which – to a greater or lesser degree – recognise supported decision making; some of these are listed on the resources page.

Both ‘support’ and ‘substitute decision making’ are terms of art which have very specific definitions within the General Comment and elsewhere in the wider literature on the CRPD. Those who are new to legal capacity under the CRPD should read the General Comment very carefully indeed before jumping to any conclusions about what ‘support’ and ‘substitute decision making’ means. A common thread throughout the ‘support paradigm’ approach under the CRPD is an emphasis on the person’s will and preferences. Support cannot be imposed against a person’s will and preferences. Sometimes, where a person’s communication cannot be understood by others, the General Comment says that supporters must try to form a best interpretation of a person’s will and preferences. Substitute decisions are defined (in part) as situations where a decision maker can be imposed against a person’s will, or where decision makers are bound to give effect to ‘objective best interests’ rather than a best interpretation of a person’s will and preferences.

Impact of the CRPD

The CRPD has already had a significant impact, and is likely to continue to do so. On the Resources page you can read about how it has influenced the work of intergovernmental organisations such as the Council of Europe and the European Union, how it has influenced judgments by the European Court of Human Rights, the European Courts of Justice and domestic courts in the UK. Article 12 CRPD has spawned a large and growing literature on legal capacity, support for legal capacity (including supported decision making) and reform of mental health and guardianship laws. Around the world, many states are undertaking reviews of their laws to see whether they comply with the CRPD and several states have set up dedicated inquiries or initiated legislative reforms to better reflect the requirements of Article 12.

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4 thoughts on “New to the UN CRPD”

I congratulate crpd members on your achievements to date. My concerns and my experiences, refers to non compliance in Australia, by all authorities contacted to date. In addition my son’s case see pp 30 10 2015 to PM M. Turnbull and Premier D. Andrews authorities lie and no one can report them, when they simply use their expertise to gag any one speaking up. I have numerous liars on records, I have reported at a VCAT meeting yet nothing happens, because of a great collusion criminality to benefit. So how can one protect an impaired in Australia, when no one responds to mu pp for one???
By the way I take this opportunity to ask for your guidance if at all possible.
Where to go next? Who’s to help my son Michael abused tortured discriminated because of his disability (administrators tricks? Use of terminology mental health or disability to suit to deceive)
Please feel free to communicate with me using my email address, easiest option I’ll be thrilled to help you all, my son Michael Humanity in Australia.
Thank you very much for the opportunity.
Emmanuel Michailidis ……………….

Hi SB, thanks for your comment, unfortunately I can’t publish it in full as it names a person who is subject to CoP proceedings. However, a redacted version follows below:

Lucy again I have to point out that if you allow a person with disabilities capacity you also expect responsibility, which they are often not capable of showing, and then those close to them have to take on the responsibility. The balance between the two is very varied, but certainly cannot be solved legally. My son has epilepsy and fluctuating capacity, which means every decision he makes under the MCA is subject to legal scrutiny – we’ve been in the CoP… since 2006. Ethically we cant treat [our son] as equal – he is dependent on our help – so back to relatives being legal representatives – Charles seems to have had a change of heart in his latest judgment on this.

22 12 2015
My son’s case “Michael” I wish to comment as follows.
My experiences over so many years, Direct care the bullies, dictates to all authorities. The big problem no one ever investigates. As a consequence all sort of abuse takes place no one investigates no one can challenge. The exception my case for one, with so much evidence, over so many years bureaucrats continue to disregard conspire falsify lie etc etc when they do not even respect Tribunal Orders, so how can one talk about justice and Human Rights in Australia?

About The Small Places

The Small Places blog is written by Lucy Series, you can read more about her and the blog on the 'About' page.

Blogs, including this blog, should never be relied upon as a source of legal advice. They may be out of date, inapplicable to your circumstances, or just plain wrong. If you need to find a solicitor, you could try the Law Society's find a solicitor webpage. The Mental Health Lawyers Association also list solicitors who do Court of Protection work. Some members of the Bar Pro Bono Unit do Court of Protection work.

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